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What if I Refuse the Breathlyzer?

I know that I have posted much of this information in the past, but since it is so often asked, it doesn't hurt to tell people the results of a refusal of the breathalyzer in Northern Kentucky. All of the information herein is with respect to a first offense of DUI in Kentucky as well as a first time refusal, unless otherwise stated. First, the refusal itself is not a crime. That said, the refusal itself does mandate a license suspension for up to 120 days. The arresting officer has the right to request breath, blood or urine of the defendant. The Defendant has the right to request a second test at his/her own cost if they so choose. The defendant has the right to challenge the refusal. if challenged, that hearing is only to determine whether or not the person refused the breath test. If the challenge is made and lost, the suspension is generally 120 days and there are NO hardship driving privileges. If a person is convicted of the DUI, the refusal merges together with the DUI suspension. Assuming that the defendant does not challenge the suspension, the suspension is typically terminated at the conclusion of the case and the conclusion of the DUI suspension. If the defendant is acquitted, the prosecution may (but is not required) to certify the refusal. If this is done, the defendant will have a suspended license regardless of the outcome of the DUI. Many times the person charged with a first offense DUI will see that it is charged as an "Aggravated DUI." If the refusal is the only reason it is considered an aggravated DUI, the charge is technically incorrect. This is not a "get out of jail free" card. There are 6 aggravators for a second or subsequent DUI offense: having a blood alcohol concentration (BAC) over .15, driving the wrong way on a highway, going 30 mph over the speed limit, having an accident involving a serious injury, having a child under 12 in the vehicle and refusing the breathalyzer. This last aggravator only applies to second or subsequent offenses, not to first time offenders. An aggravator mandates double the minimum jail time, or a minimum of 4 days of incarceration on a first offense. If a person is very intoxicated, the refusal on a first offense may actually prevent the defendant from having to serve the mandatory jail sentence. The laws differ somewhat significantly in Ohio. Ohio mandates 3 days in jail for a first offense and doubles that time if aggravated. If you have been charged with a DUI or have refused the breathalyzer in Cincinnati or Northern Kentucky, contact an attorney to represent your interests. You can contact Michael Bouldin at [email protected] or call 859-581-6453 for a consultation.

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